The ERA Is Back?

Will bellbottoms, platform shoes, and disco enjoy a similar revival? Don’t count on it; only some retro fashions qualify as “woke.”

A slightly revised version of this essay first appeared in Law & Liberty on February 28, 2020 (here). Thank you, Power Line!

The Equal Rights Amendment, a topic I’ve previously discussed in the form of a retrospective on Phyllis Schlafly, is back in the news. The occasion for this déjà vu is the newly-woke Virginia legislature’s recent ratification of the measure, which was proposed by Congress way back in 1972. The ERA pre-dates Saturday Night Fever, Charlie’s Angels, and the death of Elvis! In January, the Democratic majorities in the Old Dominion’s statehouse purported to give the ERA—long thought to be moribund—a new lease on life when Virginia became the 38th state to ratify it.

The problem is, when Congress introduced the ERA nearly 50 years ago, it set a seven-year deadline for ratification by the requisite three-quarters of the states. As Michael Rappaport has noted, “While many constitutional amendments, such as the 20th, 21st, and 22nd have also had seven-year limitations, those limitations were placed in the text of the amendments.”  The 18th amendment (Prohibition) also contained a seven-year ratification deadline in the text.

In contrast, the time limit for ratification of the ERA was set forth in the resolution proposing the amendment (as was also the case with the 23rd through 26th amendments),[1] which was passed with the necessary two-thirds vote in each house of Congress, as specified in Article V. ERA proponent Ruth Bader Ginsburg noted in a 1979 article that “The change [in location for the ratification deadline] from text to proposing clause” for amendments after the 22nd “was effected largely to avoid ‘cluttering up’ the Constitution with vestigial provisions serving no function once an amendment is ratified.” [2] Location, in other words, is irrelevant.

After an initial wave of enthusiasm, during which 35 states ratified by 1977, the ERA’s momentum stalled—due in large part to the indefatigable opposition of Phyllis Schlafly.  In a vain attempt to resuscitate the ERA, Congress extended the ratification deadline by three years and three months, until June 30, 1982, albeit by a simple majority vote. Critics charged that the extension was invalid, but the issue ultimately became moot. Not only did no new states vote to ratify during the “extended” deadline, five states (Idaho, Kentucky, Nebraska, Tennessee, and South Dakota) subsequently voted to rescind their ratifications. In 1982, when the “extended” deadline expired, the ERA was widely viewed as a dead letter. After a long period of repose (the last state to ratify, Indiana, did so in 1977), additional states began to ratify 40 years later–in 2017. So much for a “contemporaneous consensus” that is supposed to accompany constitutional amendment. [3] Following tardy votes by Illinois and Nevada, in 2020 Virginia became the 38th state to ratify the ERA.

One headline proclaimed that “Virginia Ratifies The Equal Rights Amendment, Decades After The Deadline.” Even though the vote was largely symbolic, progressives were jubilant. Despite what backers acknowledged was the ratification vote’s “uncertain legal ground,” ERA supporters were undaunted. NPR reported that “The ratification vote came early in Virginia’s legislative session, after voters put a record number of women in office in November. The state House now has the first female speaker in its history; women also serve as president pro tempore of the Senate and in other high-profile posts.” Activist legislators, aiming to generate headlines, blithely overlooked inconvenient technicalities such as ratification deadlines: “‘The people of Virginia spoke last November, voting a record number of women into the House of Delegates and asking us to ratify the ERA,’ said House Majority Leader Charniele Herring. ‘It is inspiring to see the amendment finally be considered, voted on and passed — long-awaited recognition that women deserve.’”

Is the ERA valid, notwithstanding the states’ failure to ratify it within the original (or even the “extended”) deadline? Not even close. The U.S. Department of Justice’s Office of Legal Counsel has issued a lengthy opinion firmly in the negative, concluding (without even considering the issue of rescissions, which Ginsburg termed “the most debatable issue” [4]) that:

the ERA Resolution has expired and is no longer pending before the States. Even if one or more state legislatures were to ratify the 1972 proposal, that action would not complete the ratification of the amendment, and the ERA’s adoption could not be certified under 1 U.S.C. § 106b. In addition, we conclude that when Congress uses a proposing clause to impose a deadline on the States’ ratification of a proposed constitutional amendment, that deadline is binding and Congress may not revive the proposal after the deadline’s expiration. Accordingly, should Congress now “deem [the ERA] necessary,” U.S. Const. art. V, the only constitutional path for amendment would be for two-thirds of both Houses (or a convention sought by two-thirds of the state legislatures) to propose the amendment once more and restart the ratification process among the States, consistent with Article V of the Constitution.

Ruth Bader Ginsburg, a fierce advocate of women’s rights who supported Congress’s extension of the ratification period in 1979, is intellectually honest enough to concede that the ERA died when the extension expired in 1982 without the three-quarters vote needed for passage. When she said so publicly, dooming the ERA politically, she was immediately denounced by progressive activists as a traitor to the cause. On the Left, the ends (in this case, passage of the ERA) always justify the means (blatantly disregarding the procedural rules).  

Speaking this month at Georgetown University, Ginsburg stated that “she believes the U.S. should start over with the Equal Rights Amendment (ERA) ratification process, as the constitutional amendment has passed a decades-long deadline.”  She also cited the five states that rescinded their ratifications: “‘There’s too much controversy about latecomers,’ Ginsburg said. ‘Plus, a number of states have withdrawn their ratification. So if you count a latecomer on the plus side, how can you disregard states that said ‘we’ve changed our minds?’” 

For taking the rules seriously, Ginsburg was excoriated by leftist commentators in publications including Vox, The Atlantic, The Huffington Post, and even the Los Angeles Times. While sitting justices are not supposed to comment on issues that may come before the Court, Ginsburg showed scruples in refusing to condone cheating. The Wall Street Journal commended her for “Truth in Constitutional Amending.” Sadly, House Speaker Nancy Pelosi and her Democratic colleagues (with the support of five feckless Republicans!) went in a different direction, voting to eliminate—retroactively—the ratification deadline altogether. Pelosi exulted on the House floor that “This is an historic day. A happy day as the House takes action to move our nation closer to the founding—our founding ideal that all are created equal.” Like Virginia’s time-barred ratification vote, the House’s action is all for show—political theatre for the woke masses. The Republican-controlled Senate is unlikely to save the ERA from the fate even Ginsburg concedes is due. Virginia’s much-heralded ratification vote was a publicity stunt—an empty and idle gesture showing contempt for procedural rules.

So, don’t get out those bellbottoms, grow any sideburns, plug in your lava lamp, or practice your disco moves just yet. The 1970s are not coming back, and neither is the ERA.

1. See Ruth Bader Ginsburg, “Ratification of the Equal Rights Amendment: A Question of Time,” 57 Texas Law Review 919, 923 (1979).

2. Id.; see also Grover Rees III, “Throwing Away the Key: The Unconstitutionality of the Equal Rights Amendment Extension,” 58 Texas Law Review 875, 917 (1980).

3. Dillon v. Gloss, 256 U.S. 368, 375 (1921).

4. Ginsburg, supra note 1, at 920.

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